161 F.

3d 17
98 CJ C.A.R. 5205
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

Carl Eugene HOWARD, Petitioner-Appellant,

v.
Michael A. NELSON, Warden, and Attorney General of the
State
of Kansas, Respondents-Appellees.
No. 97-3297.

United States Court of Appeals, Tenth Circuit.

Oct. 6, 1998.

Before ANDERSON, BARRETT, and TACHA, Circuit Judges.

ORDER AND JUDGMENT*
JAMES E. BARRETT, Senior Circuit Judge.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.

Petitioner Carl Eugene Howard appeals from the district court's order denying
his petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. We
affirm.

Mr. Howard has moved for a certificate of appealability (coa) and for in forma
pauperis status on appeal. Mr. Howard filed his petition in district court June

24, 1994. Therefore, as he filed before the April 24, 1996 enactment of the
Antiterrorism and Effective Death Penalty Act of 1996, the new coa
requirements contained therein do not apply. See United States v. Kunzman,
125 F.3d 1363, 1364 n. 2 (10th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct.
1375, 140 L.Ed.2d 523 (1998). For Mr. Howard to proceed, a certificate of
probable cause under former 28 U.S.C. 2253 is required. Upon consideration
of the materials before us, we grant Mr. Howard both a certificate of probable
cause and in forma pauperis status.
4

In 1987, a jury convicted Mr. Howard of one count of aggravated kidnaping,

two counts of rape, and six counts of aggravated criminal sodomy. He was
sentenced under the Kansas Habitual Criminal Act to a term of life for the
kidnaping conviction; twenty years to life for each rape conviction to be served
concurrently, but subsequent to the kidnaping charge; and fifteen years to life
for each criminal sodomy conviction, also to be served concurrently, but
subsequent to the other charges. His convictions and sentences were affirmed
on direct appeal. See State v. Howard, 243 Kan. 699, 763 P.2d 607 (Kan.1988).
As the parties are familiar with the facts, see id. at 608-09, we will recite them
here only as necessary.

In his 2254 petition, Mr. Howard claimed the State did not prove an essential
element of the charge of aggravated kidnaping and the evidence was
insufficient to support his convictions. He also alleged that counts five through
nine were multiplicious. Mr. Howard asserted he received ineffective assistance
of counsel and was denied equal protection because he was not resentenced
under new state sentencing guidelines enacted after his convictions.

Mr. Howard argues to this court that the district court erred in denying him
relief on each of his claims. On appeal from the district court's determination of
a 2254 petition, we review the district court's conclusions of law de novo,
granting a presumption of correctness to the state court's factual findings if they
are fairly supported by the record. See Hatch v. Oklahoma, 58 F.3d 1447, 1453
(10th Cir.1995). We review mixed questions of law and fact de novo. See id.
But see Wright v. West, 505 U.S. 277, 294-95, 112 S.Ct. 2482, 120 L.Ed.2d
225 (1992) (declining to announce a standard for habeas review of the state
court's application of the law to the facts).

The due process guarantees of the Fourteenth Amendment require that "no
person shall be made to suffer the onus of a criminal conviction except upon
sufficient proof--defined as evidence necessary to convince a trier of fact
beyond a reasonable doubt of the existence of every element of the offense."
Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In reviewing a sufficiency of the evidence claim on habeas, "the relevant

question is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." Id. at 319. Thus, we "accept
the jury's resolution of the evidence as long as it is within the bounds of
reason." Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir.1993).
8

We conduct our review of the sufficiency of the evidence "with explicit

reference to the substantive elements of the criminal offense as defined by state
law." Jackson, 443 U.S. at 324 n. 16. Under Kansas law, kidnaping is defined
as the taking or confining of any person by force, threat, or deception, while
intending to hold that person in order to facilitate the commission of a crime.
See Kan. Stat. Ann. 21-3420.

Mr. Howard contends the State failed to present sufficient evidence to support
the jury's finding that he took the victim while intending to commit a crime. We
have reviewed the trial transcript and conclude that the evidence was sufficient
to meet this element. See, e.g., State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731
(Kan.1976). Our review of the transcript shows that the evidence presented at
trial, viewed in the light most favorable to the state, was sufficient to support
each of the convictions. See Howard, 763 P.2d at 609-10.

10

Mr. Howard asserts the counts were multiplicious. We agree with the state
court, see Howard, 763 P.2d at 610, and the district court, see Howard v.
Nelson, 980 F.Supp. 381, 386 (D.Kan.1997), that the acts alleged in this case
were separate because they occurred in different rooms of the house, over a
sufficiently long period of time. The charges were not multiplicious.

11

Mr. Howard argues he received ineffective assistance of counsel. To succeed

on an ineffective assistance of counsel claim, Mr. Howard must show both that
counsel's performance was constitutionally deficient and that counsel's
ineffectiveness resulted in actual prejudice. See Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the first
prong of Strickland, Mr. Howard must show "counsel's representation fell
below an objective standard of reasonableness." Id. at 688. We will not use
hindsight to second-guess counsel's tactical decisions. See id. at 689.

12

Mr. Howard asserts counsel should have cross-examined the victim regarding
her statement that she had gonorrhea. Mr. Howard also contends counsel
should not have agreed to suppress exculpatory evidence regarding a prior rape
report made by the victim. Mr. Howard has made no showing of error on the

part of counsel. Mr. Howard has failed to show how additional testimony
beyond the statement presented to the jury that the victim had told Mr. Howard
she had gonorrhea failed to adequately put the issue before the jury.
13

Evidence of the victim's prior rape was prohibited by Kan. Stat. Ann. 213525. Mr. Howard has presented no evidence showing that the detective who
investigated the prior rape allegation would have testified that the victim had
told him the report was false. Further, the victim testified and was crossexamined at trial. The jury had adequate opportunity to judge her credibility as
to the veracity of the charges pending against Mr. Howard.

14

Finally, Mr. Howard argues he was denied equal protection because the state
sentencing guidelines were revised, but he was not resentenced under the new
guidelines. Mr. Howard is not entitled to federal habeas relief due to a
subsequent change in the state sentencing guidelines. States may freely amend
their sentencing laws without being required to apply them retroactively to
persons validly sentenced under prior law. See Murray v. Cowley, 913 F.3d
832, 834 (10th Cir.1990). Mr. Howard does not alleged he was improperly
sentenced under the law as it existed at the time of his conviction. No error
occurred.

15

The judgment of the United States District Court for the District of Kansas is
AFFIRMED. The mandate shall issue forthwith.

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir.R. 36.3